CPCs Fight Back against
By Dave Andrusko
First Resort, a Bay Area pro-life pregnancy counseling and
state-licensed health clinic, has filed an important First Amendment
suit against a “deeply flawed” ordinance which First Resort alleges
violates its constitutionally protected rights to free speech.
Passed by the San Francisco Board of Supervisors in October, the
“Pregnancy Information Disclosure and Protection Ordinance” covers
only two pregnancy centers—Alpha Pregnancy Center and the much
larger First Resort—and purports to protect women “seeking
information regarding options to terminate a pregnancy” from
receiving “untrue or misleading” information. The ordinance was
signed into law by Mayor Ed Lee in early November. First Resort
flatly denies it is either misleading women or is “interfering” with
a woman’s right to secure an abortion.
Fifteen hundred miles away, responding to a lawsuit filed against
them on November 6, officials from the city of Austin, Texas, agreed
to temporarily put on hold an ordinance that forces pro-life
pregnancy centers to post signs in English and Spanish declaring
that they do not provide abortions, abortion referrals, and other
services. Centers that do not post the signs faced financial
penalties and possible contempt of court charges.
Three pro-life organizations—the Alliance Defense Fund, the Texas
Center for the Defense of Life, and Jubilee Campaign’s Law of Life
Project—went to bat for Austin LifeCare, challenging the ordinance
on First Amendment grounds, the basis on which similar harassment
ordinances have been struck down.
With the parties’ agreement Federal District Court Judge Lee Yeakel
ordered the case to be stayed at least until February 3, 2012, when
the parties will provide a status update to the court. That
agreement also puts the lawsuit on hold.
Ordinance Purpose Is ‘Destruction’
The campaign against Crisis Pregnancy Centers is proudly led by
NARAL. However, each time one of the ordinances has made it to court
judges have slapped it down, including in the cities of Baltimore
and New York and in Montgomery County, Maryland.
But that didn’t stop the San Francisco board of supervisors. In an
overheated August 2 press release San Francisco City Attorney Dennis
Herrera claimed the ordinance was necessary because “the delays
these centers can cause interfere with women’s time-sensitive,
constitutionally protected right to reproductive choice.”
But as First Resort noted in its lawsuit, “In approving the
Ordinance, the Board neither received evidence that alleged
advertising by a [pregnancy resource center] had ever caused a woman
to lose her ability to choose an abortion or any particular abortion
procedure nor made legislative findings that such an event had ever
occurred.” In fact, according to the lawsuit, First Resort has
safeguards in place to ensure there would be no delay.
Filed in the United States District Court in San Francisco, First
Resort’s lawsuit fairly steams with indignation at what the
woman-helping center asserts is an ordinance bereft of legislative
findings or underlying evidence to support the claim that First
Resort is misleading women or providing them with false evidence.
The lawsuit asserts the ordinance is a blatant example of viewpoint
discrimination intended to “chill” First Resort’s right to free
speech, adding, “The purpose of the Ordinance is to destroy or
minimize First Resort’s ability to communicate with women who are or
may be considering abortion.”
At the core of the legal complaint is who the ordinance excludes
from its liability and enforcement provisions—“all pregnancy
centers, including the City of San Francisco itself,” that “provide
or provide referrals to clients for … abortions.” Thus, by design,
the ordinance exempts all but persons and organizations the city
regards as having “anti-abortion” or pro-life views.
The supervisors took this questionable step even though there was
plenty of advice in advance that they were on shaky legal ground.
Back in September two supervisors pointedly complained that no
record of deception has been demonstrated. Their concern was no
doubt in part a reflection of their briefing in which supervisors
were told “that in order to mount a strong defense against a likely
legal challenge, the city would have to produce a record of false
and misleading advertising,” according to the San Francisco
Examiner’s Dan Schreiber.
“The best legislative backers could come up with were reviews on
Yelp and a search on Google when people plugged in the phrase
‘abortions in San Francisco’ and Plunkett’s First Resort
organization popped up as the second link,” the Examiner reported.
“This legislative record here, to me, is empty,” Supervisor Sean
In the end there was only one dissenter, Elsbernd. At the October 18
meeting, he said, “There has been no testimony, no documentation, no
affidavits of any woman seeking service who has been misled. There
is nothing in the record documenting that.” He added, “What I hear
we are doing today is passing a solution in search of a problem.”
Elsbernd also pointed to the cities where similar laws were struck
down or are in the process of being challenged. After First Resort
filed its lawsuit, he told the San Francisco Chronicle, “We knew
there would be litigation over this … but the City Attorney should
defend the ordinance.” However, Elsbernd added, “I’ll wait until
after the trial to say, ‘I told you so.’”